People v. Intong CA4/1

Opinion

Filed 8/20/26 P. v. Intong CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D087611

Plaintiff and Respondent, (Super. Ct. No. RIF2101987) v.

ROBERT DONALD INTONG,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Riverside County, Samah Shouka, Judge. Reversed and remanded with instructions. Sandra Gillies, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, Eric A. Swenson and Heather M. Clark, Deputy Attorneys General, for Plaintiff and Respondent. In 2024, a jury convicted Robert Donald Intong of first degree murder (Pen. Code, § 187, subd. (a).)1 Intong argues that the prosecutor’s statements 1 Further section references are to the Penal Code. in closing argument constituted plain error. Intong further contends, and the People concede, the court erred in by using the wrong standard in ruling on Intong’s motion to modify the verdict pursuant to Penal Code section 1181, subdivision (6).2 Resolving this matter by memorandum opinion (see generally People v. Garcia (2002) 97 Cal.App.4th 847), we accept the People’s concession and remand so that the trial court can consider the motion under the proper standard. I. FACTUAL SUMMARY In the early morning hours of May 17, 2021, while Intong and his girlfriend, Shelley B., were standing in the parking lot outside their Motel 6 motel room, the victim, C.B., approached them. C.B., who was a stranger to Intong and Shelley B., was acting irrationally and making threats. After some conversation, C.B. punched Intong in the face and threatened to stab him. Intong went into his motel room saying, “I’m tired of this shit,” grabbed a gun, came back outside and shot C.B. three times. The shooting occurred approximately ten seconds after C.B. punched Intong. C.B. died at the scene. His autopsy revealed the presence of methamphetamine, fentanyl, and morphine in his system. II. DISCUSSION A. The claim of prosecutorial error for remarks during closing argument is forfeited. Intong argues that in closing argument, the prosecutor urged the jury to convict him in order to preserve social order and improperly suggested if 2 Intong also argues that the evidence was insufficient to support a finding of premeditation and deliberation, but in light of the concession by Respondent as to the motion and remand, he agrees with the Respondent that this court should not reach this issue at this time. We concur.

2 community values were not upheld, the community would descend into lawlessness. He contends that the argument constituted prosecutorial error. Specifically, the prosecutor argued: “You see, it’s those people that wake up every morning and put on that blue suit. It’s the ones who get up and take that gun belt and put it around themselves, who lace up their boots, adjust their badge, and walk out on to the streets, not concerned for their own life, but for the community it which it serves. “It’s people like Investigator Galbreath, Officer Sabeh, the K9-unit, SWAT, POP Team, it’s all of those intentional units that our community have created to protect and serve. It is the laws, ladies and gentlemen, that we as a society have created to ensure that order is established and that justice is administered evenly. “You see, ladies and gentlemen, what we don’t have in our community, we don’t have a militia. We don’t have people that can just run around with their guns making up their own rules and administering street justice. “We have, ladies and gentlemen, the mouths [sic] of the Riverside Police Department that are there to be called on when you need help. Because think about it, ladies and gentlemen, if we lived in a world where we just allowed people to run around, make their own rules, and administrator [sic] their own justice, what would happen? “We live in a world where it would be okay to storm the nation’s capitol, break through the doors and wreck everything. Where it would be okay to be angry and upset at a former president who says crazy things at times and try to assassinate him. Where it would be okay to be a person who gets punched in the face one time and turn around and shoot them. Or a place where an individual makes alleged empty threats that you don’t even believe [, and] you then use that as an excuse to extinguish their life forever. “That’s not the type of community that we live in. We don’t want to be in an unsafe, chaotic place. That’s why we have the police. That’s why we have you, the jury, who 3 determines what happens, and her honor who decides what kind of sentence, if any, is given.”

As Intong concedes, his counsel did not object to the prosecutor’s statements during closing argument. Generally, a defendant must make a timely objection and a request that the jury be admonished to disregard the impropriety, unless the objection would have been futile or the error could not be cured by an admonition. (People v. Aguirre (2025) 18 Cal.5th 629, 705 (Aguirre).) To the extent that appellant argues that the prosecutor’s statements violated his constitutional rights, thereby requiring reversal even in the absence of an objection, we disagree. It is true that a prosecutor may violate a defendant’s constitutional rights when the prosecutor engages in a course of conduct “ ‘ “ ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ ” (Aguirre, supra, 18 Cal.5th at p. 706.) Examples of such egregious conduct includes multiple misrepresentations of fact (Miller v. Pate (1967) 386 U.S. 1, 7); withholding of exculpatory evidence (Brady v. Maryland (1963) 373 U.S. 83); or where the prosecutor’s argument prejudices a specific right, such as the privilege against compulsory self-incrimination. (Griffin v. California (1965) 380 U.S. 609). Even if we could construe the prosecutor’s argument as something more nefarious than the unremarkable proposition that self-defense is not equivalent to a defendant’s decision to take the law into their own hands, it cannot be said that the argument was so egregious as to result in a denial of due process.

4 To the extent that appellant argues that, even if not a constitutional violation, the prosecutor’s closing argument violated California law,3 his counsel’s failure to object during argument results in the forfeiture of this argument on appeal. Appellant does not show that an objection would have been futile or that an admonition could not have addressed the issue. As in Aguirre, “[t]he record here does not indicate the trial court would not have given due consideration to an objection to . . . the challenged lines of argument. Nor were the prosecutor’s arguments ‘so extreme or pervasive’ that a suitable curative admonition could not have been provided, assuming one was necessary.” (Aguirre, supra, 18 Cal.5th at p. 706). We likewise conclude that the claim of prosecutorial error is forfeited. B. Remand is necessary so that the court may apply the correct standard in ruling on Intong’s motion to modify the verdict. After the jury returned the verdict, Intong brought a motion to modify the verdict pursuant to Penal Code section 1181, subdivision (6) on the grounds that the evidence was insufficient as a matter of law to sustain a conviction for first degree murder. Intong asked the court to “review and reweigh the evidence presented [at] trial and modify the verdict to a finding of second-degree murder or manslaughter.” Section 1181, subdivision (6) provides in relevant part that the court may grant a new trial “[w]hen the verdict or finding is contrary to law or 3 California law prohibits a prosecutor’s use of “deceptive or reprehensible methods” in an effort to persuade the jury. (Aguirre, supra, 18 Cal.5th at pp. 706−707, quoting People v. Gionis (1995) 9 Cal.4th 1196, 1214.) It is improper for the prosecutor to make arguments to the jury that give it the impression that emotion may reign over reason, and to present irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response. (Aguirre, at pp. 705−706.)

5 evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, . . . the court may modify the verdict . . . or judgment accordingly without granting or ordering a new trial . . . .” In considering a motion under section 1181, subdivision (6), the court extends no evidentiary deference in ruling on the motion. “Instead, it independently examines all the evidence to determine whether it is sufficient to prove each required element beyond a reasonable doubt to the judge, who sits, in effect, as a ‘13th juror.’ ” (Porter v. Superior Court (2009) 47 Cal.4th 125, 133.) “It is the trial court’s function to determine independently whether it is satisfied that there is sufficient credible evidence to sustain the verdict.” (People v. Dickens (2005) 130 Cal.App.4th 1245, 1254.) Intong argues, and respondent concedes, that the court applied the wrong standard in considering the motion. The record bears out this argument. In ruling on the motion, the court stated, “I would have, if I were a juror, reached a different result. But I’m not the jury, and I have to honor the sanctity of the jurors’ decision. I’m more of a reviewing court in this stage. [¶] . . . [¶] If I were in on that jury, I think I would have had a different decision. But I can’t say as a matter of law sitting from here that's there no evidence that was presented before that jury that could support that ultimate conclusion . . . .”

This is an inaccurate statement of the correct standard. The court conflated a sufficiency of the evidence review, in which the verdict is upheld if there is any evidence to support it, with its duty to independently determine whether the element of premeditation had been proven. (See People v. Veitch (1982) 128 Cal.App.3d 460, 468 [in considering a motion under section 1181, subdivision (6), “the trial judge independently weighs the evidence, rather 6 than applying the substantial evidence rule and determining legal sufficiency”].) The court “is under the duty to give the defendant the benefit of its independent conclusion as to the sufficiency of credible evidence to support the verdict.” (Veitch, at p. 467.) The court did not do so here. Accordingly, we accept the concession of the respondent and remand for the trial court to consider the matter under the correct standard. III. DISPOSITION We reverse the judgment of the trial court and remand this matter for reconsideration of appellant’s motion to modify the verdict.

KELETY, J.

WE CONCUR:

DATO, Acting P. J.

RUBIN, J.